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District Court of The Hague holds State of the Netherlands liable for Srebrenica massacre – Part II

On 16 July 2014, in the case of Mothers of Srebrenica v. State of the Netherlands, the District Court of The Hague held the State of the Netherlands liable for damages incurred by relatives of victims of the Srebrenica massacre resulting from the cooperation of Dutchbat – the Dutch battalion of the United Nations forces responsible for the safe area around the Bosnian town of Srebrenica – in the deportation of male Muslim refugees from Dutchbat’s compound by the Bosnian Serbs on 13 July 1995. In an earlier post on the Hague District Court’s decision inthis case, I discussed the attribution of acts of Dutchbat to the Netherlands. In this second post, I will address (1) the limited extraterritorial application which the Court gave to the European Convention on Human Rights, and (2) the application of Dutch law to events that occurred outside the Netherlands.

Extraterritorial application of human rights

While, as I discussed in the previous post, the Hague District Court attributed Dutchbat’s acts in relation to the mini safe area around its Srebrenica compound to the Netherlands, ultimately the Court decided that only the individuals who had found refuge inthe smallercompound of Dutchbat fell within the human rights jurisdiction of the Netherlands. At first sight this is somewhat puzzling, as both the attribution and the jurisdiction question were solved on the basis of an ‘effective control’ standard. The geographical discrepancy resulting from the application of this standard to both questions may be explained by the different purpose and contentof the standard as applied to questions of attribution c.q. jurisdiction. Questions of attribution are governed by the law of State responsibility and organizational responsibility, the relevant rules of which aim to identify what actor (the State, the organization, or possibly both) had effective control over specific acts. Questions of human rights jurisdiction are concerned with the scope ratione loci of human rights norms, or the circle of individuals whose rights the State should protect; the European Court of Human Rights (ECtHR), as far as the European Convention on Human Rights is concerned, has limited this circle to those individuals over whom the State has effective control, even beyond its borders. This distinction means that individuals who are injured by acts that are attributable to a State may nevertheless not fall within that State’s jurisdiction, thus precluding a competent Court from establishing that the State has committed a wrongful act.

In the limited number of cases relevant to international military operations heard by the ECtHR, the Court has largely avoided dealing with questions of jurisdiction and attribution simultaneously. In Banković,the Court only addressed the jurisdictional question, and in Behrami, only the question of attribution. In Al-Jedda, the Court did address attribution and jurisdiction, but it appeared to collapse the conceptual distinction between both, by holding in para. 86 under the heading ‘jurisdiction’ ‘that the internment of the applicant was attributable to the United Kingdom and that during his internment the applicant fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention’. In Mothers of Srebrenica, in contrast, the Hague District Courtneatly carried out a separate analysis of attribution and jurisdiction, eventually concluding that not all individuals affected by acts attributed to the Netherlands fell within its jurisdiction. Such a conclusion is however only possible where a strict jurisdictional control standard is used. Indeed, if, for jurisdictional purposes, effective control is defined as control exercised by State agents regardless of the place where they do so, jurisdiction will largely follow attribution. Once it becomes clear that agents of the troop-contributing State, as opposed to the international organization, have control over the impugned acts (attribution), the State will be regarded as having human rights obligations towards the potential victims of such acts (jurisdiction).

The latter rather loose effective control standard, which may bring any person who is somehow affected by State action within the State’s jurisdiction, has not been embraced by the ECtHR nor by the Hague District Court in Mothers of Srebrenica. Rather, in Al-Skeini, the ECtHR introduceda spatial ‘public powers’ model, pursuant to which jurisdiction is a function of the performance of executive or judicial functions of one State in the territory of another State, stating in para. 135 that ‘[T]he Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government [and] where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (…).’

It is recalled that in Mustafićand Nuhanović, the Dutch courts had relied on this model to hold that both applicants fell within the jurisdiction of the Netherlands since they found themselves in the spatially delimited Dutchbat compound subject to Dutch authority (see Mustafić, para. 3.17). In Mothers of Srebrenica, the Hague District Court similarly held that the individuals who had sought refuge in the compound fell within the jurisdiction of the Netherlands (para. 4.160), unlike those who stayed in the mini safe area just outside the compound, let alone those outside the mini safe area (para. 4.161). According to the Court, the Netherlands did not exercise any formal authority in the latter area (para. 4.156), or – in an apparent nod to the State agent control model – did it have physical power and control over the individuals there (para. 4.159).

It remains to be seen, however, whether the State did indeed not carry out executive functions in the mini safe area which it had itself set up, to which it was under an obligation to provide humanitarian assistance, and from which it was to prepare the evacuation of the refugees (see para. 4.80). It is recalled that in Al-Skeini, the United Kingdom was considered to exercise public powers not just in its military compounds but throughout the entire occupied area of South Eastern Iraq on the ground that it had ‘assumed authority and responsibility for the maintenance of security’ there (para. 149). It would thus appear that, at least in the mini safe area, again borrowing from Al-Skeini, the Netherlands exercised ‘some of the public powers normally to be exercised by a sovereign government’ (para. 149) and that accordingly the approximately 20,000-25,000 refugees (see Mothers of Srebrenica, para. 2.35) who had sought refuge there fell within the jurisdiction of the Netherlands.

Applicable national law

A final issue that deserves contemplation is the question of the national law applicable to assess the lawfulness of a troop-contributing State’s actions. Legal cases against such a State, although having a public international law dimension, are after all cases that are primarily brought under national tort law. Before applying the tortious standard of care expected from the State, it is then first necessary to identify which State’s law applies: the law of the troop-contributing State, or alternatively the law of the State where the troops are deployed.

In Mustafićand Nuhanović, the Dutch courts had applied the law of Bosnia and Herzegovina to assess the lawfulness under national law of Dutchbat’s actions, on the ground that the impugned actions took place in Bosnia (para. 6.3). In Mothers of Srebrenica, however, the Court applied Dutch law on the ground that military actions consist of the exercise of public authority (‘acta jure imperii’), even if these actions took place outside the Netherlands (paras. 4.167-4.170). There is no principled reason why in one case local law and in another case foreign law should apply, as the tortfeasor (Dutchbat) and the locus delicti (Potočari/Srebrenica) are the same, and the victims met the same fate (killed at the hands of General Mladić’s men). Accordingly, one of the decisions must be misguided.

It is observed that since 2009, pursuant to Article 10:159 of the Dutch Civil Code, acta jure imperii should be assessed according to the law of the State that exercised said authority. The article provides that Dutch law applies to ‘obligations flowing from the exercise of Dutch public authority’ (‘op verbintenissen voortvloeiend uit de uitoefening van Nederlands openbaar gezag’). Such acts do not fall within the scope of the so-called Rome II Regulation, which provides in Article 1(1) that the Regulation shall not apply to ‘the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’. Accordingly, the Dutch legislator’s decision that acta jure imperii should be assessed according to Dutch law, was a discretionary one that did not find its legal basis in the Rome II Regulation.

Pursuant to Article 10:159, it appears that Dutch law should indeed apply, although one may argue that the provision only refers to the exercise of public authority in the Netherlands, as a result of which damage occurs abroad, e.g., where a Dutch financial services authority, because of inadequate supervision, causes damage abroad. Under the conflict rule of Article 4(1) of the Rome II Regulation, the law of the State where the damage occurs would normally apply, a result which the Dutch legislator wanted to avoid. It is not clear whether, when adopting Article 10:159 of the Dutch Civil Code, the legislator also had the situation of Dutch military operations acting and causing damage abroad in mind. It is also unclear whether at the time of the events in 1995, an exception had already been made for acts in furtherance of the exercise of public authority. The Court took the view that this exception existed as a matter of ‘unwritten private law’ (para. 4.169), and drew a parallel with the law of State immunity, which attaches immunity to acta jure imperii, as opposed to acta jure gestionis (para. 4.170). The Court did however not adduce strong evidence of the fact that the exception indeed predates its codification. Neither is the transposition of the concept of acta jure imperii from the law of State immunity to private international law self-evident, as the former is concerned with preventing (courts from) one State from sitting in judgment of another State and the latter with the application of substantive law. From the absence of jurisdiction of the foreign State it does not flow as a matter of course that the jurisdictionally competent ‘home’ State should apply its own law.

However that may be, one would expect that the (lower) Court in Mothers of Srebrenica would defer to the views of the Court of Appeal and the Supreme Court on matters of applicable law (even if the District Court is technically not bound by a decision of the Supreme Court in what was after all a different case). Nevertheless, the Court did not, and justified this by observing that in the latter cases, the ‘applicable law was not in dispute and for that reason did not have to be officially determined’ (para. 4.171). But even then, one would assume that although in Mustafić and Nuhanović the applicable law may not have been in dispute, the Courts went on to apply Bosnian law because they considered this application to be substantively correct (indeed, they are not bound by the determinations of the parties, and, in the interest of the law, could rule differently). It is of note in this respect that in accordance with art. 10:3 of the Dutch Civil Code, the rules of private international law and the law designated by these rules is applied ex officio.

Ultimately, however, this controversy may be of limited practical relevance, since Bosnian and Dutch law, as relevant to the case, are essentially the same; only the rules on settling the amount of immaterial damage appear to differ (para. 4.172).

Concluding observations

From the two blogposts on Mothers of Srebrenica, it emerges that the District Court’s decision can be criticized in a number of respects. Doubt can be cast in particular on the Court’s treatment of attribution, its ruling on the extraterritorial application of human rights, and its determination of Dutch law as the applicable law. The Court of Appeal may well review these issues. In spite of the criticism that can be levelled at the District Court’s decision, however, the Court should be commended for its willingness to apply the rule of law to as politically sensitive a situation as the deployment of foreign troops abroad.